NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

18-P-719 Appeals Court

COMMONWEALTH vs. KERRY OGARRO.

No. 18-P-719.

Middlesex. May 1, 2019. - July 24, 2019.

Present: Sullivan, Massing, & Lemire, JJ.

Due Process of Law, Probation revocation. Practice, Criminal, 

Revocation of probation, Presumptions and burden of proof,

Findings by judge, Hearsay. Evidence, Hearsay. Defense of 

Property.

Indictments found and returned in the Superior Court 

Department on January 28, 2010. 

A proceeding for revocation of probation was heard by 

Laurence D. Pierce, J. 

Max Bauer for the defendant.

Jessica Langsam, Assistant District Attorney, for the 

Commonwealth.

MASSING, J. A Superior Court judge found that the 

defendant, Kerry Ogarro, violated the terms of his probation by 

committing a new crime, assaulting a family or household member. 

The defendant claimed that his actions were in defense of 

property -- the victim had stolen his cell phone, and he was 
2

just trying to get it back -- and that the statements attributed 

to the victim by the testifying police officer were unreliable 

hearsay. While we agree with the defendant that the judge was 

required to find by a preponderance of the evidence that the 

Commonwealth had disproved defense of property in order to find

that the defendant had committed the alleged crime, we disagree 

that such a finding must be explicit. Concluding that the 

evidence amply disproved the defense of property claim, that the 

judge implicitly rejected the defense, and that the judge did 

not abuse his discretion by accepting the victim's out-of-court 

statements, we affirm.

Background. In December 2011, after a jury trial in the 

Superior Court, the defendant was convicted of assault and 

battery by means of a dangerous weapon (a knife), for which he 

received a State prison sentence of from five to seven years, 

and assault and battery, for which he received a consecutive 

three-year term of probation. A panel of this court affirmed 

the convictions in an unpublished memorandum and order issued 

pursuant to our rule 1:28. See Commonwealth v. Ogarro, 83 Mass. 

App. Ct. 1113 (2013). The defendant was subsequently found in 

violation of probation,1 and the judge imposed a two and one-half 

 

1 The defendant violated an order that he have no contact 

with the victim, a condition of probation that was imposed at 

sentencing and made effective immediately, notwithstanding his 

incarceration.
3

year house of correction sentence on the assault and battery 

conviction, one year to be served and the balance suspended 

until December 2024. The defendant appealed from the extension 

of probation, which a second panel of this court affirmed. See 

Commonwealth v. Ogarro, 85 Mass. App. Ct. 1110 (2014).

The defendant began serving the probationary portion of his 

second sentence on or about May 3, 2017. The first condition of 

his probation was to "obey all local, state, and federal laws 

and all court orders." On August 1, 2017, a notice of violation 

issued alleging that he had violated that condition based on new 

criminal charges of assault on a family or household member and 

disorderly conduct. The final probation violation hearing was 

held over the course of two days in January 2018. Lynn Police 

Officer Craig Fountain was the principal witness.

Fountain testified that he and his partner, in response to 

a radio call, drove their marked cruiser to the area of Union 

and Silsbee Streets in downtown Lynn in the early afternoon of

July 29, 2017. Several people on the street "frantically" waved 

them down and directed them toward a location on Broad Street,

where they found the defendant on top of a screaming woman, 

straddling her and holding her wrists to the ground. The 

officers instructed him to get away from the woman, and he 

obeyed. 
4

The woman, upset and crying, told the officers that she and 

the defendant had met at a bus stop so the defendant could 

"return some of her stuff to her." When she told the defendant

"that she did not want to be in a relationship [with] him no 

more," he "became enraged and assaulted her several times." She 

tried to run away, but the defendant caught her, threw her to 

the ground, and got on top of her. Fountain observed scrapes on 

the woman's knees, and she "complained of knee pain." She told 

the officers that she and the defendant had been dating for 

three months. The defendant told the officers that the woman 

had stolen his cell phone.

Defense counsel argued that the judge should discredit the 

statements attributed to the victim as unreliable hearsay, and 

that the defendant used reasonable force in defense of property: 

he was holding the woman down "in the process of trying to 

retrieve his phone." Accordingly, he argued, the Commonwealth 

had the burden not only to prove that the defendant committed an 

assault, but "also to prove that he didn't act with reasonable 

force to retain his property." The prosecutor argued that the 

defendant's single self-serving statement that the victim took 

his cell phone was not sufficient to raise the issue of defense 

of property, but even if it were, his use of force was not 

reasonable: "the defendant, or a reasonable person in the 

defendant's shoes, did not need to run down this individual, 
5

grab her, throw her down forcefully and hold her down" to get 

his cell phone back. 

The judge found, "based on trustworthy and reliable 

evidence," that the Commonwealth had shown by a preponderance of 

the evidence that the defendant assaulted the victim.2 The judge 

found that the victim, who had been dating the defendant, "no 

longer wanted to be in a relationship with the defendant, [and] 

that the defendant became enraged, that she fled down Silsbee 

Street to Broad Street, that the defendant caught her at that 

location, [and] threw her to the ground." The judge found 

Fountain's personal observations to be corroborative of the 

victim's hearsay statements, "demonstrat[ing] trustworthiness, 

reliability." Finding that the defendant had violated the terms 

of probation, the judge imposed the remaining eighteen months of 

the suspended sentence.

Discussion. 1. Asserting defense of property in probation 

violation proceedings. The defendant asserts that because he 

raised defense of property as justification for his assault of 

the victim, the Commonwealth had the burden to disprove the 

defense. He further claims that the judge was obligated to 

 

2 The notice of probation violation alleged that the 

defendant had committed the crime of "Aslt on Family/Household 

Member." The relevant statute, G. L. c. 265, § 13M, provides 

punishment for "[w]hoever commits an assault or assault and 

battery on a family or household member" (emphasis added). 
6

address the defense of property claim explicitly in his

findings. We agree that when a defendant adequately raises a 

claim of defense of property in the context of probation 

violation proceedings, due process requires that the 

Commonwealth disprove the defense by a preponderance of the 

evidence. Due process does not require explicit findings, 

however, where the judge's findings and the record are 

sufficient to show that the violation decision rests on 

permissible grounds.

"A probation violation proceeding is not the equivalent of 

a criminal trial, and thus a probationer is not accorded 'the 

full panoply of constitutional protections applicable at a 

criminal trial.'" Commonwealth v. Hartfield, 474 Mass. 474, 479 

(2016), quoting Commonwealth v. Durling, 407 Mass. 108, 112 

(1990). Because the revocation of probation results in a 

deprivation of liberty, the due process clause requires that the 

Commonwealth provide probationers with certain procedural 

protections, including the right to be heard, the right to 

present a defense, and the right to a written statement by the 

judge setting forth the reasons for revoking probation and the 

evidence relied upon. See Hartfield, supra; Commonwealth v. 

Kelsey, 464 Mass. 315, 319-322 (2013); Durling, supra at 112-

113. The "central concern in determining the scope of a 

probationer's due process rights" is the probationer's and the 
7

Commonwealth's shared interest "in a 'reliable, accurate 

evaluation of whether the probationer indeed violated the 

conditions of his probation.'" Kelsey, supra at 321, quoting 

Durling, supra at 116. "[T]he requirements of the due process 

clause have, at their base, the goal of providing an accurate 

determination whether revocation is proper." Durling, supra.

"Due process entitles a probationer 'to an opportunity to 

show not only that he did not violate the conditions [of 

probation], but also that there was a justifiable excuse for any 

violation or that revocation is not the appropriate 

disposition.'" Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 18 

(2014), quoting Black v. Romano, 471 U.S. 606, 612 (1985). The 

basic due process principles applicable in probation violation 

proceedings dictate that a probationer has the right to assert 

self-defense or defense of property, where relevant, as 

justification for an alleged probation violation. See Thompson

v. Riveland, 109 Wis. 2d 580, 586 (1982) ("A claim of selfdefense is available to all persons in society whether on 

probation or not"). A claim of self-defense or defense of 

property is a claim that the probationer's conduct was, in fact,

lawful. See Commonwealth v. Williams, 481 Mass. 799, 805 

(2019), quoting Commonwealth v. Rodriguez, 370 Mass. 684, 688 

(1976) ("we have long recognized that self-defense negates the 

element of 'unlawfulness'"). See also Williams, supra at 806 
8

(in context of G. L. c. 278A motion for postconviction forensic 

testing, assertion of self-defense is claim of "factual 

innocence").3

The concept of defense of property "relates to the right to 

use limited force to defend personal property from theft." 

Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 n.2 (1999). 

A person "may defend or regain his momentarily interrupted 

possession by the use of reasonable force, short of wounding or 

the employment of a dangerous weapon." Commonwealth v. Donahue, 

148 Mass. 529, 531 (1889). If the victim had just stolen the 

defendant's cell phone, and he used reasonable force to get it 

back, he would not have been guilty of a crime and would not 

have violated the terms of his probation.

In a criminal case, where the defendant raises a colorable 

claim of self-defense or defense of property, the Commonwealth 

must prove beyond a reasonable doubt that the defendant did not 

legitimately act in self-defense or in defense of property. See 

Rodriguez, 370 Mass. at 688; Haddock, 46 Mass. App. Ct. at 248 

 

3 We limit our discussion to self-defense and defense of 

property, which "provide[] a justification, so that action which 

society otherwise seeks to prevent becomes permissible under the 

circumstances." People v. Allegri, 109 Ill. 2d 309, 315 (1985). 

Our reasoning does not extend, for example, to a defense based 

on the absence of criminal responsibility, which "does not turn 

unacceptable behavior into permissible conduct, but only excuses 

the individual from criminal punishment for having violated a 

penal statute." Id. at 315.
9

("Where there is credible evidence to raise these defenses, the 

burden is on the Commonwealth to prove beyond a reasonable doubt 

that the defendant acted with force that was excessive in kind 

or degree"). But in probation violation proceedings, "[t]he 

finding of a violation is not by a jury but by a judge, and is 

based only on a preponderance of the evidence, not proof beyond 

a reasonable doubt." Commonwealth v. Wilcox, 446 Mass. 61, 65 

(2006). See Commonwealth v. Holmgren, 421 Mass. 224, 226 

(1995). Accordingly, when a colorable claim of self-defense or 

defense of property is raised to contest an alleged probation 

violation, the Commonwealth need only show by a preponderance of 

the evidence that the probationer did not legitimately exercise 

the defense. The burden of proof properly rests with the 

Commonwealth, as a finding that the defendant violated probation 

may result in a deprivation of liberty. See State v. Sligh, 115 

Conn. App. 197, 203-204 (2009) (although not conclusively 

resolving issue, suggesting that burden of proof should not be 

on probationer).

Moreover, the allocation of the burden of proof to the 

Commonwealth, rather than the defendant, will affect the 

probation violation determination "only in a narrow class of 

cases where the evidence is in equipoise," Medina v. California, 

505 U.S. 437, 449 (1992), that is, where the evidence of selfdefense or defense of property is equally as strong as the 
10

evidence that the probationer did not properly avail himself of 

the defense. See Commonwealth v. Chatman, 466 Mass. 327, 336 

n.7 (2013) (discussing significance of allocating burden of 

proof by a preponderance of evidence). In this narrow class of 

cases, we err on the side of liberty.

2. Explicit finding unnecessary. "Due process requires a 

judge to issue a written statement supporting a probation 

revocation to help 'insure accurate factfinding with respect to 

any alleged violation and provide[] an adequate basis for review 

to determine if the decision rests on permissible grounds 

supported by the evidence'" (emphasis omitted). Commonwealth v. 

Bain, 93 Mass. App. Ct. 724, 726 (2018), quoting Black v. 

Romano, 471 U.S. at 613-614. This aspect of due process, 

however, "is not an inflexible or invariably mandatory 

requirement." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593 

(2000).4 The judge's statement is sufficient if it provides the 

probationer with the reasons for the decision, adequate for the 

probationer to obtain a meaningful review. See Bain, supra at 

726-727; Morse, supra at 592-594.

 

4 For example, "a judge satisfies this due process 

requirement where the findings are made orally on the record and 

the probationer obtains a transcript of the findings," 

Hartfield, 474 Mass. at 484 n.8, as was the case here. See Fay

v. Commonwealth, 379 Mass. 498, 504-505 (1980).
11

The judge's statement of reasons here was consistent with 

the flexible requirements of due process applicable in probation 

violation proceedings. The judge specifically credited the 

victim's statements that the defendant became enraged because 

she wanted to break up with him, chased her down, and threw her 

to the ground. The victim's version was corroborated by the 

officer's eyewitness testimony that the defendant was straddling 

the victim and holding her down while she was screaming, and 

that the victim's knees were scraped. Just before the judge 

announced his findings, the parties presented argument on the 

defense of property claim, which the defendant spun entirely 

from a single hearsay statement he made to the officer. "[T]his 

was a simple, straightforward case, and the entirety of the 

short transcript (aside from [the defendant's single selfserving hearsay statement]) is th[e] inculpatory evidence." 

Morse, 50 Mass. App. Ct. at 593. Although the judge did not 

explicitly mention the defendant's defense of property claim, 

his findings make it clear that he found no justification for 

the defendant's action. See Commonwealth v. Nunez, 446 Mass. 

54, 59 (2006) ("Although the judge did not explicitly state that 

he found the hearsay reliable, that conclusion is implicit in 

the fact that he made findings based on the hearsay evidence"). 

The defense of property claim was reed thin, and the evidence 

amply negated it.
12

3. Reliance on hearsay. The judge did not abuse his 

discretion in relying on the out-of-court statements that the 

victim made to the testifying police officer. A judge may rely 

on hearsay evidence at a probation violation hearing where the 

evidence has substantial indicia of reliability. See, e.g., 

Hartfield, 474 Mass. at 482; Commonwealth v. Patton, 458 Mass. 

119, 132 (2010); Durling, 407 Mass. at 118; Commonwealth v. 

Henderson, 82 Mass. App. Ct. 674, 676 (2012). "In assessing 

whether the hearsay evidence is reliable, a hearing judge may 

consider (1) whether the evidence is based on personal knowledge 

or direct observation; (2) whether the evidence, if based on 

direct observation, was recorded close in time to the events in 

question; (3) the level of factual detail; (4) whether the 

statements are internally consistent; (5) whether the evidence 

is corroborated by information from other sources; (6) whether 

the declarant was disinterested when the statements were made; 

and (7) whether the statements were made under circumstances 

that support their veracity." Hartfield, supra at 484. 

"[W]here a judge relies on hearsay evidence in finding a 

violation of probation, the judge should set forth in writing or 

on the record why the judge found the hearsay evidence to be 

reliable." Id. at 485. We review the judge's assessment of the 

reliability of evidence for abuse of discretion. See 

Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).
13

Here the judge properly set forth his conclusion that the 

statements attributed to the victim were corroborated by the 

responding officer's personal observations, "demonstrat[ing] 

trustworthiness, reliability." Although the victim was an 

interested party, all of the other factors demonstrating 

reliability were present. Her statements were based on her 

personal participation in the incident and made to the officer 

immediately thereafter. She gave a detailed, internally 

consistent account of the events, without time for reflection or 

fabrication. Indeed, the judge might have accepted the victim's 

statements on the alternate ground that they qualified as 

excited utterances, an exception to the rule against hearsay. 

See Commonwealth v. Santiago, 437 Mass. 620, 624-626 (2002); 

Mass. G. Evid. § 803 (2) (2019). "Evidence which would be 

admissible under standard evidentiary rules is presumptively 

reliable." Durling, 407 Mass. at 118. See § 6(B) of the 

Guidelines for Probation Violation Proceedings in the Superior 

Court, Mass. Rules of Court, at 1049 (Thomson Reuters 2019) 

("Hearsay evidence shall be admissible at a Violation Hearing as 

permitted under Sections 802 through 804 of the Massachusetts 

Guide to Evidence, or when determined by the judge to be 

substantially reliable"). The judge did not abuse his 

discretion in relying on the officer's account of the victim's 

statements. 
14

Conclusion. The order entered on January 26, 2018, 

revoking probation and imposing sentence, is affirmed. 

So ordered.